Beaudet, Mike v. Newburyport, City of - Police Department (SPR 20150470)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords August 20, 2015 SPRlS/470 Mr. Darren R. Klein, Esq. Kopelman and Paige, P.C. 101 Arch Street, 12th Floor Boston, MA 0211 0 Dear Attorney Klein: I have received the petition of Mike Beaudet ofWFXT-TV appealing the April6, 2015 response of the Town ofNewburyport Police Department (Department) to his request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Beaudet requested records related to a Department internal affairs investigation. This was the subject of a prior appeal. In that appeal I found the Department had failed to satisfy its statutory burden of specificity in denying access to the requested records. See SPR15/059 Determination of the Supervisor of Records (March 20, 2015). In partial compliance with this order the Department provided an additional response, dated April 6, 2015. The compliance is not complete, as the Department failed to comply with my order to produce a custodial index of the responsive records. The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10(c); 950 C.M.R. 32.08(4). "Public records" is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10 ( c); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma.us/pre

Mr. Darren R. Klein, Esq. SPR15/470 Page Two August 20, 2015 Exemption (a) In your letter you indicated the Department's intent to withhold the records pursuant to the Right to Privacy statute as it operates through Exemption, (a) of the Public Records Law. G. L. c 214, §lB. Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, §7 (26) A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Attorney General v. Collector ofLynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). The Right to Privacy statute does not specifically nor by implication exempt any particular records from disclosure, therefore it does not operate by way of Exemption (a) for the withholding of records responsive to this request. Exemption (c) The Department cited the first clause of Exemption (c), also known as the privacy exemption to the Public Records Law to justify nondisclosure. Exemption (c) applies to: personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy G. L. c. 4, §7 (26) Other than an indication that the responsive record may contain medical information, the Department failed to provide any other substantive information to support nondisclosure, other than a reference to the Right to Privacy statute. As indicated above, the Right to Privacy statute may not be used as a method to deny access under the Public Records Law. The Department may, however, omit any medical information from the responsive record regarding specifically identified persons. Internal affairs records are subject to mandatory disclosure At issue is whether internal affairs investigation records are public records subject to mandatory disclosure. In its response the Department states that the investigated person in this instance resigned prior to release of the report.

Mr. Darren R. Klein, Esq. SPR15/470 Page Three August 20, 2015 Exemption (c) of the Public Records Law contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-33 (1983). The first clause creates a categorical exemption for personnel information that relates to an identifiable individual and is of a "personal nature." Id. at 434. The Supreme Judicial Court of Massachusetts has found that a records custodian may withhold from disclosure as personnel information records containing information that is "useful in making employment decisions regarding an employee." Wakefield Teachers Ass'n v. School Comm., 431 Mass. 792, 798 (2000). For example, "employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee," may be withheld pursuant to the first clause of Exemption (c). Id. Historically, this office has broadly interpreted the personnel exemption; however, based upon a 2003 holding by the Appeals Court of Massachusetts, this exemption requires a more narrow interpretation. See Worcester Telegram & Gazette v. Chief of Police of Worcester, 58 Mass. App. Ct. 1 (2003); subsequent review denied by the Supreme Judicial Court. The nature of some materials and the context in which they arise take them beyond what the Legislature contemplated when exempting "personnel [file] or information." Worcester Telegram & Gazette ~'58 Mass. App. Ct. at 9. The Appeals Court in Worcester contrasted the public status of disciplinary investigation materials of law enforcement personnel from the "ordinary evaluations, performance assessments, and disciplinary determinations" included in the public records exemption for "personnel [file] or information" for other public employees due to the significance of maintaining the transparency of the police department's internal affairs process. Worcester Telegram & Gazette Corp., 58 Mass. App. Ct. at 2. The Appeals Court reasoned that openness in a police internal affairs investigatory process, facilitated by the release of the relevant documents, was necessary to foster the public trust in law enforcement. Worcester Telegram & Gazette Corp., 58 Mass. App. Ct. at 7-8. The Appeals Court in Worcester defined the internal affairs process as follows: An internal affairs investigation is a formalized citizen complaint procedure, separate and independent fi"om ordinary employment evaluation and assessment. Unlike other evaluations and assessments, the internal affairs process exists specifically to address complaints of police corruption (theft, bribery, acceptance of gratuities), misconduct (verbal and physical abuse, unlawful arrest, harassment), and other criminal acts that would undermine the relationship of trust and confidence between the police and the citizenry that is essential to law enforcement. The internal affairs procedure fosters the public's trust and confidence in the integrity of the police department, its employees, and its processes for investigating complaints because the department has the integrity to discipline itself. A citizenry's full and fair assessment of a police department's internal investigation of its officer's actions promotes the core value of trust

Mr. Darren R. Klein, Esq. SPR15/470 Page Four August 20, 2015 between citizens and police essential to law enforcement and the protection of constitutional rights. Worcester Telegram & Gazette Corp., 58 Mass. App. Ct. at 7-8, citing Globe Newspaper Co., 419 Mass. at 866 (emphasis added). It is clear from the definitions above that records that are the product of such an investigation into the conduct of a law enforcement official are public records. The Appeals Court in Worcester held that officers' reports, witness interview summaries, and the internal affairs report were not part of a "personnel file or information" exempt from disclosure under Exemption (c), as these documents related to the workings and determinations of the internal affairs process whose quintessential purpose is to inspire public confidence. Worcester Telegram & Gazette Corp., 58 Mass. App. Ct. at 7. The Appeals Court in Worcester also held that any memoranda from the investigating authority, issued directly to the investigated officer, detailing the findings of the investigation and conclusions reached, may be withheld under Exemption (c). The Appeals Court found that this "notice from the disciplining authority to the particular employee advising of the disciplinary decision" was within the core category of personnel information useful in making employment decisions regarding the employee, and was exempt from disclosure pursuant to the first clause of Exemption (c) as part of a "personnel file or information." Worcester Telegram & Gazette ~'58 Mass. App. Ct. at 16, 17. Other reports, witness interview summaries and related records must be provided to members of the public upon request. The records at issue in this appeal are not ordinary employee evaluations, assessments, or disciplinary documents. The public is entitled to a "full and fair assessment" of the investigation into misconduct. Worcester, 58 Mass. App. Ct. at 8, citing Globe Newspaper Co., 419 Mass. at 866. In your denial, you explained that the investigated party resigned and that "no action was ever formally taken with regard to the information in the requested investigation report." It is important to note that the public status of internal investigation reports is not outcome determinative. See Leeman v. Cote, 21 Mass. L. Rep. 411 (2006). The Appeals Court ordered internal affairs investigation records be made public to show transparency in the investigation process. It should be noted, for example, that the officer in the Worcester Chief of Police matter was exonerated. Worcester Telegram & Gazette v. Chief of Police of Worcester, 2000 Mass. Super. LEXIS 495 (2000). Accordingly, whereas has failed to show how any exemption would permit nondisclosure of internal affairs records, records deemed by the Appeals Court as public records, the Department is hereby ordered, within ten (10) days of this order, to provide Mr. Beaudet with the requested records, which may be redacted in a manner consistent with the Public Records Law

Mr. Darren R. Klein, Esq. SPR15/470 Page Five August 20, 2015 and this order. If the Department does redact the records it must, within ten (1 0) days provide to Mr. Beaudet a written explanation, with specificity, how a particular exemption applies to each record. To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. If there are any fees associated with this response a written, good faith estimate must be provided. G. L. c. 66, § 1O (a); see also 950 C.M.R. 32.06(2) (where cost of complying with a request for public records is expected to exceed ten dollars ($10.00), custodian of records shall provide written good faith estimate). Once the fees are paid, you mu provide the responsive records. ~uy ~ Superviso cc: Mr. Mike Beaudet